A Farooq, Khader and Illiyaz vs J. Raghupathy Since Dead by Lrs. (Smt. Yashoda and Others)

Jawad Rahim, J.—This second appeal is directed against the order dated 22.2.2010 in R.A.71/02 on the file of Addl. Civil Judge (Sr. Divn.), K.G.F., remanding O.S.40/95 on the file of Civil Judge (Jr. Divn.), K.G.F., for fresh trial. The appeal is posted for admission after notice to the other side.

Heard, The appeal is admitted to consider the following substantial question of law:

Could the power conferred on the appellate court by Rules 23 and 23(a) of Order XLI, CPC be exercised without hearing the appeal on merits merely on the basis on the application filed by the Respondent?

Contextual facts are:

a) Appellants herein filed a suit in O.S.40/95 seeking a decree of declaration and possession of ''B'' schedule property and that the Defendant''s possession in respect of the said property is illegal, unlawful. They also sought for an order of injunction to restrain the Defendant from making any alteration, construction or damaging the property. The Defendant entered appearance, but died during trial. His son-Suresh and wife-Yashodamma were brought on record as L. Rs. , omitting his daughters. Plaintiffs led evidence examining the 1st Plaintiff as PW1 and two other witnesses. The son of the deceased Defendant was examined as DW1.

b) Considering the evidence on record, the trial court found Plaintiff''s evidence substantiating the claim put forward and decreed the suit. Aggrieved by it, L. Rs. of the Defendant were in appeal in R.A.71/02. During the pendency of the appeal, daughters sought to be impleaded on the plea that they were not granted any opportunity. The request was turned down against which they were before this Court. This Court granted the relief sought and directed the appellate court to implead them in further proceedings. In this manner, all the L Rs. of the original Defendant came on record.

c) Instead of pursuing the appeal on merits, the Defendants filed an application under Rule 23(a) of Order XLI, CPC requesting the court to remand the matter on the ground they were not heard. Learned appellate judge entertained the application and without posting the appeal to be heard on merits, has allowed the application and by the impugned order, set aside the judgment and decree and remanded the same to the trial court for fresh trial. The same is assailed in this appeal.

Learned Counsel for the Appellant, with vehemence, questions the jurisdiction of the appellate court in remanding the matter without hearing the appeal on merit. Learned Counsel for the Respondent though initially supported the impugned order, left it to the court to be decided in the light of the provisions of Rule 25 of Order XLI, Code of Civil Procedure

Gain could be had by referring to Rule 25 of Order XLI, CPC which envisages the circumstances in which an order of remand could be passed by the appellate court. "Where Appellate Court may frame issues and refer them for trial to court whose decree appealed from:

Where the court from whose decree the appeal is preferred has omitted to frame or try any issue, or to determine any question of fact, which appears to the Appellate Court essential to the right decision of the suit upon the merits, the Appellate Court may, if necessary, frame issues, and refer the came for trial to the court from whose decree the appeal is preferred and in such case shall direct such court to take the additional evidence required; and such court shall proceed to try such issues, and shall return the evidence to the Appellate Court together with its findings thereon and the reasons therefore within such time as may be fixed by the Appellate Court or extended by it from time to time.

Therefore, the circumstances in which an order of remand could be passed are spelled out in Rule 25. In view of this legal position, without hearing the appeal on merit and examining the finding recorded by the trial court, the appellate court has seriously fallen in error in entertaining the application under Rule 23(a) of Order XLI, CPC and remanding the matter to the trial court for a fresh enquiry, after giving opportunity to the Appellants.

The impugned order is wholly unsustainable. Hence, it is set aside. The appeal is allowed, remanding the matter to the appellate court for decision on merit. In the circumstances, there is no order as to costs.